Flight ID Fight Revived

Ryan Singel
08.16.04

Backed by a phalanx of civil liberties groups, civil liberties iconoclast John Gilmore on Monday relaunched his legal campaign against the federal government's requirement that airlines ask passengers for photo identification in order to board a plane.

Gilmore, who began his fight against the identification requirement in the summer of 2002, filed suit Monday in the Ninth Circuit Court of Appeals in San Francisco, asking the court to force the government to reveal the requirement and to declare it an unconstitutional burden on the right to travel.

The suit is a continuation of Gilmore's original challenge (Gilmore v. Ashcroft), which he filed without backing from civil liberties groups in U.S. District Court in July 2002.

Although a traveling tips page on the Transportation Security Administration website advises travelers to "keep available your airline boarding pass and government-issued photo ID for each adult traveler until you exit the security checkpoint," government lawyers refused to tell the judge in the original case whether or not the requirement existed.

Government lawyers argued the government does not require passengers to show identification to fly and that "the challenged requests for identification are of central importance to achieving the government's objective of preventing air piracy."

But the government acknowledged that if the requirement did exist, it would be in a secret security directive that had to be challenged in an appeals court, an argument heeded by the judge when she finally dismissed the original lawsuit on jurisdictional grounds 14 months after hearing arguments in the case.

Gilmore, who made millions as the fifth employee of Sun Microsystems, has not flown or taken an intercity bus or train domestically since July 4, 2002, when he was not allowed to fly on Southwest Airlines without showing identification, despite having gone through the screening process.

Gilmore says he does not have a state-issued identification or driver's license and that the identification rule, unlike searches for weapons in carry-on bags, does not make the country safer.

"I'm not willing to show my passport to travel in my own country," Gilmore said in an interview. "I am not willing to have my rights taken away by bureaucrats who issue secret laws in the dead of night."

The identification requirement dates back to the Clinton administration, which put the measure in place just after the explosion of TWA Flight 800 in 1996. Terrorism was initially suspected as the cause of the disaster, though it was later determined that a faulty fuel tank was to blame.

Civil liberties advocates say that they are now backing Gilmore's challenge both because the stakes are high and because the political mood in the country has shifted since 2002.

CDT, a moderate advocacy group known for working closely with members of Congress, is signing on to an amicus brief supporting Gilmore's case due to the group's concerns over government transparency, according to Schwartz.

"If you are requiring people to do something, you can't not show them the rule," Schwartz said.

The Electronic Frontier Foundation, which was co-founded by Gilmore, filed a brief supporting his argument that the requirement itself is unconstitutional, according to EFF attorney Lee Tien.

"When you are justifying a massive program of identity checking, you have the burden of showing why this is a good thing," Tien said. "The identity requirement is security theater. If a court accepts such a requirement without any factual support, it opens the door for these same kinds of programs to spread like toadstools."

Chris Hoofnagle, EPIC's associate director, thinks the courts may be most sympathetic to Gilmore's challenge to government secrecy.

"The executive branch has created a category of regulations that is extrajudicial, and courts don't like things that are unreviewable," Hoofnagle said. "There shouldn't be such a thing as secret regulations in a democratic society."

Gilmore says he has spent somewhere between $50,000 and $150,000 on his lawsuits.

He has also hired privacy activist and publicist Bill Scannell to launch internet publicity campaigns backing this lawsuit and another lawsuit challenging an airline passenger screening system.

"People make money and they choose what they want to spend it on," Gilmore said. "Some people spend it on their kids, making sure they get a good education. I choose to spend it on building the kind of society I want to live in."